FRESNO, Calif. (Legal Newsline) – A California appeals court has affirmed a nearly $10 million verdict to a widow who watched her husband die at a swap meet when a pole holding a banner touched an overhead power line.
Cherry Avenue Auction and other defendants argued that power line was an open and obvious hazard, but on March 16 the Fifth Appellate District said it was not. As a result, the $9.5 million verdict against them was affirmed.
“In particular, it was not obvious that the line was uninsulated, that it was energized, or that the amount of electricity being transmitted was lethal,” Justice Donald Franson wrote.
“Thus, a warning would not have been superfluous; it would have provided information that was not obvious.”
Cherry Avenue owns an outdoor swap meet in Fresno, at which Araceli Castellano Zuniga and her late husband Jose Flores rented two spaces to sell their merchandise. The property is managed by Kinsman Enterprises, another defendant.
Zuniga and Flores owned a booth with a frame of metal tubing and a fabric canopy. The metal poles were 28 feet high.
They were given a vendor space that was 26.5 feet below a Pacific Gas and Electric power line installed in the 1930s. When they tilted their booth upright, one of the poles hit the power line, they were both electrocuted. Zuniga survived, but her husband did not.
One of the owners of Cherry Avenue testified that he knew the power lines were dangerous, uninsulated and deadly, the decision says. He was asked why he didn’t think that would ever be a danger.
“It didn’t occur to me, because nothing was ever near those lines, no. So, it didn’t occur to me,” James Burson said.
Another owner, Neil Burson, testified, “I’ve always known that they’re not to be gotten near. So, I never considered somebody might throw a kite up there, because I know you stay away from them.”
The defendants were found 77.5% at fault for a $12.25 million verdict. They also lost their appeal that Zuniga’s recovery for bystander emotional distress damages for watching her husband die did not duplicate the award of emotional distress damages from being electrocuted.
The bystander damages were $6 million and the direct injury damages were $3 million.